The proposal, supported by Atlanta Police Chief George Turner and Mayor Kasim Reed, would put Atlanta alongside cities such as Seattle and Washington, D.C. that have adopted loitering laws aimed at curbing drug activity, gang violence and prostitution.
But such laws are ripe for legal challenge because they put police in the constitutionally shaky position of arresting someone for standing on the street or walking on the wrong sidewalk on the suspicion they might commit a crime. And advocates for victims of human trafficking are taking a dim view of the proposal, seeing it as needlessly punishing the vulnerable.
“Banishment? Really? It is 2013. Are they going to stone them as they are taking them out of town?” said Stephanie Davis, executive director for Georgia Women for a Change. “This doesn’t solve the problem and it is not good public policy.”
Reed considers the proposal a necessary response to a public nuisance where there are few easy answers, and points out the ordinance targets those who both buy and sell sex.
“I am open to input … but let’s be clear — it focuses on individuals, not just women or men, who have been prosecuted and convicted,” Reed said. “So if you have not been convicted of prostituting then you won’t be subject to this.”
A legal thicket
Atlanta is aware of the potential legal fight it could be courting. Turner, city attorneys and others are discussing ways to improve the law, including making sure it can survive a court challenge.
According to the current draft of the legislation, any person – a buyer or seller – convicted of prostitution-related charges would be banned from “areas of known prostitution.” The city would determine the areas of known prostitution annually based on the previous year’s crime statistics.
Some legal scholars argue against such laws giving police the power to make arrests because someone is suspected of being involved in a crime just because they are in an area where crime is prevalent. They say it could violate the 4th Amendment which protects against unreasonable search and seizure without probable cause.
For that reason, state and federal courts throughout the country have struck down similar laws that would create prostitution, drug or gang-free zones. The legal precedent most cited in these cases is the Supreme Court’s rebuke of a 1999 gang-loitering statute in Chicago. Similar cases include a 2006 prostitution loitering ordinance struck down in Nevada and a 2000 case where a Clarke County judge in Athens struck down a loitering ordinance aimed at drug activity, calling it constitutionally vague.
Reed said Atlanta’s proposal — similar to a law in Seattle — is more nuanced. And like the Seattle law he thinks it will survive legal scrutiny. Simply standing in a prostitution zone won’t likely lead to the initial arrest. But if a convicted prostitute or buyer is flagging down cars or striking up conversations with passersby, then they could be subject to arrest and banishment.
” We’re not trying to put people in jail,” Reed said. “We simply ask that they not come back to where they were caught or convicted.”
The Georgia chapter of The American Civil Liberties Union, which has fought similar laws in other states, favors decriminalizing prostitution. If the proposed law passes, it will consider challenging it.
“I don’t see how this helps,” said Chad Brock, staff attorney for ACLU Georgia. “The ACLU’s position is that the city should focus on trafficking and the exploitation of children.”
Living around the sex trade
Miller, the pharmacy owner, thinks the police are doing a good job trying to beat back open-air prostitution. But he thinks they need more weapons.
“They are arrested and three days later, that same person is back here doing the same thing,” he said.
Those prostitutes, some victims of child sex trafficking, need help not jail, Davis argues.
“We are talking about transgender youth. Poor kids, who are having survival sex and have nowhere else to be,” Davis said.
Reed said Atlanta had made major strides in dealing with prostitution and child sex trafficking. The city has set up a sex trafficking crimes unit, converted fire stations to safe places for abused children and partnered with the Georgia Bureau of Investigation, he said.
“This issue needs to be dealt with and I care deeply about it,” Reed said.